The Eleventh Circle ruled against the Commission and held that the comparisons were “immune to antitrust attacks as long as their anti-competitive effects fall within the scope of the patent exclusion potential”. 116 The decision was consistent with past interests in other circles.117 The Supreme Court overturned this decision and found that repayment settlement agreements could sometimes be contrary to antitrust law. In the majority`s view, these agreements can significantly affect competition by reducing the risk of non-patent declaration118 The reimbursement agreements concluded by the Court in The Actavis case fall within the incentive system established by the Hatch-Waxman Act and serve in particular to frustrate it. The Hatch-Waxman Act was motivated by the idea that generic drug manufacturers need stronger incentives to challenge weak patents; The authorisation of reimbursement agreements would nullify the purpose of this Statute, as patent holders and generic manufacturers would still prefer to share the benefits of the patent of medicinal products than to risk annulment.160 Challenge clauses would not prevent a particular legislative response to an identified problem of patent and cartel legislation. However, it is important to keep in mind that Actavis did not include the interpretation of the Hatch-Waxman Act, but it was primarily a decision on the limits of patent law and its relationship to antitrust law.161 License agreements are usually written and detailed, so proof of an agreement and its content is usually not an issue. However, in some cases, it may be more difficult to identify a penalty clause, especially when the sanction is formulated in the form of a benefit. Similarly, a broad and no-fault termination clause in favour of the patent owner could have similar effects to a challenge clause with respect to incentives to challenge patents. The inclusion of such a clause in the prohibition depends in part on the justifications for its inclusion in the contract and the inclusion by the parties of a specific limitation of that clause, so that it could not simply be triggered by a patent challenge. The patent owner faces two sources of uncertainty: the risk of legal costs for the company and the risk of patent inefficiency. This first source of uncertainty may be important for the patent owner, but it should not be of concern for the reasons set out above.
The second source of uncertainty is that the source of income can be cut off from the patent. This harms the patent owner by reducing the expected value of the patent and complicating the patent owner`s planning. The first of these damages is not directly relevant to our analysis – the patent owner is not entitled to the full value of the patent if it is not valid. The second damage – the difficulty of planning – is related to the company`s risk aversion, which stems from credit needs.201 Uncertainty about the risk of patent declaration makes it difficult to evaluate the patent and, therefore, makes it more difficult to use capital markets to flatten risk. In some cases, this risk is low. A company with a large portfolio of valuable patents can have no difficulty accessing capital.202 A listed company, whose patent license fees are paid directly to shareholders in dividends, does not need credit. But a small company that wants to use the patent as collateral for a loan can come at a real cost. A person who cannot get a loan may claim to be risk averse. For companies, institutions and individuals in this position, the ability to limit future patent litigation by including challenge clauses in licensing agreements helps mitigate at least one aspect of this uncertainty. It is important to remember that patent holders have other methods to mitigate this uncertainty, for example.
B the hiring of experts to assess the risk of litigation. . . .